PM admits Cole Inquiry has limited power

John Howard has acknowledged there are limits to the power of the Cole Inquiry to pursue federal ministers over the AWB scandal.

Transcript

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KERRY O'BRIEN: The Opposition today played what it believes is its trump card in the ongoing AWB oil-for-food scandal. Having claimed for months now that the terms of reference given to the Cole inquiry were totally adequate to get to the truth of the matter, the Government has now been presented with a legal opinion provided to the Opposition, which argues the opposite. The opinion comes from a Sydney Senior Counsel, Bret Walker, who himself has conducted three commissions of inquiry, and in response, Commissioner Cole has released a letter today in which he says it would be inappropriate to seek major changes to his terms of reference to allow him to determine whether Australia had breached its international obligations over AWB or whether a minister has breached obligations himself imposed on him by regulation. Mr Cole says only the Government should decide such a change to the terms of reference. The Prime Minister has consistently said he would widen the scope of the inquiry if he was asked to do so by Mr Cole, but after learning that Mr Cole believes he can't ask for a significant widening of his scope, Mr Howard said he won't be changing Mr Cole's brief. I'll be speaking with the PM shortly, but first this report from political editor Michael Brissenden.

JOHN HOWARD, PRIME MINISTER: I believe that there should be an independent inquiry into whether there was any breach of Australian law by those Australian companies referred to in the Volcker Report. I believe that that inquiry should be armed with appropriate powers.

MICHAEL BRISSENDEN: Nearly five months later and the question now is: Was this an inquiry designed to get to the bottom of who knew what about the paper of bribes to Saddam Hussein and who was responsible, or one designed to deflect blame and attention away from the Government and direct it instead squarely at AWB? The Opposition clearly believes the latter.

KEVIN RUDD, OPPOSITION FOREIGN AFFAIRS SPOKESMAN: And given the Prime Minister's continued refusal to confirm the massive gaps that exist in Commissioner Cole's current powers, powers explicitly designed by the Prime Minister to try and get his ministers off the hook.

MICHAEL BRISSENDEN: The Government says the Opposition is simply playing politics.

JOHN HOWARD: What we have sought to do is to establish whether this has been any illegal conduct, Mr Speaker. Whether there's been a breach of the law of the Commonwealth, the state or a territory, because that's what Kofi Annan asked us to do, Mr Speaker, and that is what we are doing. I mean, the Member for Griffith wants the terms of reference extended to suit the political purposes of the Labor Party, Mr Speaker.

MICHAEL BRISSENDEN: A commission of inquiry that did reach Government, compelled ministers to appear and tell all, whatever they may be, would, of course, suit the Labor Party if only for the party political pleasure of seeing the likes of Foreign Minister Downer, Trade Minister Mark Vaile and the Prime Minister put through the wringer. But for now it seems there appears to be a moat around the Government. The drawbridge is up and it's unclear if the Cole commission will ever get inside. At the heart of this is the inquiry's terms of reference.

SIR LAURENCE STREET, FORMER ROYAL COMMISSIONER" There is always a temptation when one is a royal commissioner to think, "Well, look, I'll clean up all of this." And one thing I'll suggest to the Government. I'll do this I'll do that. I'm not going to be specific, but we all can recollect a royal commission that got way, way out beyond its original terms of reference, as the commissioner followed various rabbits down various burrows. That's not what a royal commission is about. A royal commission is a specific - or a commission such as this in the federal arena - is a commission to inquire into a particular topic and report back to executive government.

MICHAEL BRISSENDEN: Sir Lawrence Street is one of Australia's most respected legal minds and he's no stranger to royal commissions himself.

SIR LAURENCE STREET: I don't criticise politicians for one moment. I've done high-profile political inquiries myself. That's the political arena is the political arena. The arena is the fourth estate in which you and your colleagues function, Mr Brissenden is another. But the judicial arena, or the judicial arena such as an inquiry such as this, although it's not an adjudicative function, is something which is apart and has to be ruthlessly protected by the integrity of the commissioner to ensure that he or she doesn't find themselves pushed out beyond what is the proper scope of their terms of reference.

MICHAEL BRISSENDEN: Commissioner Cole's terms of reference allow him to consider if any laws of the Commonwealth have been broken. They don't allow him to consider the competence of ministers or Commonwealth officers or whether or not they fulfilled their obligations under international law, specifically the UN's sanctions regime. The Government, though, has said repeatedly that if Commissioner Cole feels he needs to change or expand the terms of reference, then that request would be agreed to.

JOHN HOWARD: If he needs additional terms of reference he will ask for them and undoubtedly that request will be met, Mr Speaker.

MICHAEL BRISSENDEN: But exactly what can Cole ask for? Today in a letter written to Labor spokesman Kevin Rudd, the solicitor assisting the commission states: "However it would not be appropriate for a commissioner to seek amendment of the terms of reference to address a matter significantly different to that in the existing terms of reference."

Currently there is nothing in Cole's terms of reference that allows him to make findings about whether or not ministers or public servants fulfilled their obligations under civil law. The commission can't investigate or conclude that a minister may have failed in his legal obligations to stop AWB paying kickbacks to Saddam Hussein. The Opposition says it's a cover-up. According to the legal advice sought by the Opposition from Bret Walker SC, this puts exhibitioner Cole in an invidious position.

ADVICE TO LABOR FROM BRET WALKER SC: "It is invidious for a person required to be rigorously impartial simultaneously to be considering let alone making suggestions for new or different matters to be the subject of his inquiries."

MICHAEL BRISSENDEN: Veterans like Sir Laurence Street agree the position for Cole is difficult, but he simply has to play it straight.

SIR LAURENCE STREET: His duty is to carry out the inquiry as it is laid down in the terms of reference. He's not the guardian of all aspects of public interest associated with this topic. He's been given a specific task and his duty is to get on with that task and make his report. I may say a duty that he's discharging with admiral balance and, as one would expect, integrity. He's a judge of enormous stature, of shining integrity and he's doing I think a very praiseworthy job in a difficult political climate.

MICHAEL BRISSENDEN: It's difficult alright. The Foreign Minister in particular has been feeling the heat. Today the Australian newspaper even editorialised against him in the strongest terms. The Australian is usually one of the Government's more consistent supporters, but it has to be said on the AWB scandal they've been the toughest of all. It was all grist for Kevin Rudd.

KEVIN RUDD: Short of a neon sign flashing "Saddam Hussein's Hidden Bribes Here", it's hard to imagine what more Mr Downer and DFAT could have needed to comprehensively investigate AWB. Further that Mr Downer has demonstrated he is no longer, he no longer has the judgment to serve as Australia's Foreign Minister or in any other higher office. His department needs a shake-up and his department needs a new minister.

ALEXANDER DOWNER, FOREIGN AFFAIRS MINISTER: Mr Speaker, look, I can't write the editorials myself. Sometimes they're good and sometimes they're not, but I've been in politics for 21 years and, Mr Speaker, you have to put up with this sort of thing if you're tough in politics.

MICHAEL BRISSENDEN: The cut and thrust of the politics will go on for some time, there's little doubt about that. Cole himself winds up his commission in the next few weeks. As we now know he doesn't think it appropriate for him to ask for the terms of reference to be widened. The commission does say, though, that it's a course that is still open to executive Government. It may not come as much of a surprise to hear that the Government says it won't be doing any such thing.